Complainant

Respondent

Parties

Abul Kashem Golam Shahriar

Railway Refreshment Rooms Ltd

Representatives

  Self-represented

 Peninsula

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act 1998

CA-00066940-001

24/10/2024

The complainant was employed by the respondent as a barback from 25 September 2021 until 3 September 2022.

The claims of discrimination on grounds of race and of victimisation referred to the Commission concerned an employment reference request completed by the respondent and provided to a third party in or around 1 August 2024.

The complainant asked the respondent to provide him with a reference on a predefined format, as requested by one of the complainant’s prospective employers.

The complainant lost an employment opportunity due to the prospective employer deeming the reference inadequate. 

Written submissions received on 10 February 2025 included various claims in addition to the claims submitted under the Employment Equality Acts 1998-2015.

In oral evidence, the complainant outlined issues with the employment reference document completed by the respondent.  The loss of employment opportunity by reason of the reference provided carried work visa implications for the complainant, a Bangladeshi national, which would not be the same for a person from a European Union member state.

The complainant’s employment with the respondent ended more than two years prior to the referral of the case to the Commission.   

The complainant’s case under the Employment Equality Acts 1998-2015 is not well founded and is statute barred.  Notwithstanding the foregoing, the complainant fails to make out a prima facie case of discrimination.

The complainant requested a reference from the respondent in or around July 2024.  The respondent completed the reference, which was in a questionnaire format, in good faith.  There is no nexus between the complainant’s race and the reference completed by the respondent, which is the subject of the discrimination and victimisation claims. 

Additional claims raised by way of written submissions, filed by the complainant on 10 February 2025, are statute barred and/or fall outside the remit of the Workplace Relations Commission.

All allegations asserted by the complainant are denied.

The complainant’s claims of discrimination and victimisation under the Employment Equality Acts 1998-2015 (the “Acts”), referred to the Commission on 24 October 2024, are in relation to an employment reference request completed and provided by the respondent to a third party in or around 1 August 2024.  The complainant requested the reference from the respondent on 31 July 2024. 

The complainant submitted that the reference provided by the respondent constituted direct and indirect discrimination on the race ground and victimisation. 

Relevant Law

The Acts prohibit discrimination on protected grounds in particular employment-related areas and circumstances.

Section 8(1) of the Acts prohibits discrimination by an employer against an employee or prospective employee in relation to:-

(a)    access to employment,

(b)    conditions of employment,

(c)    training or experience for or in relation to employment,

(d)    promotion or re-grading, or

(e)    classification of posts.

Provisions of section 8 relevant to prospective employees are those concerning access to employment and conditions of employment.

Section 8(5) provides in relation to access to employment:-

“Without prejudice to the generality of (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee-

(a)    in any arrangements the employer makes for the purpose of deciding to whom employment should be offered,

(b)    by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different, or

(c)    by publishing or displaying, or causing to be published or displayed, an advertisement which contravenes section 10(1) insofar as such advertisement relates to access to employment”

Section 8(6) concerns discrimination in relation to conditions of employment, and provides:-

“Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one –

(a)    the same terms of employment (other than remuneration and pension rights),

(b)    the same working conditions, and

(c)    the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measrues,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.”

Victimisation is defined in section 74(2) of the Acts as follows:-

“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

There are time limits for referral of claims for redress in respect of discrimination or victimisation set out in section 77 of the Acts.

Section 77(5) of the Acts, in relevant part, provides:-

“(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the [Director General of the Workplace Relations Commission] or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

 (c) …

Findings

It is common case that the complainant was employed by the respondent from 25 September 2021 until 3 September 2022.   This case was referred to the Commission on 24 October 2024.

The protections in the Acts against discrimination apply in particular circumstances and areas of employment. 

In the first instance, I find that any claims of discrimination on the race ground in connection with the complainant’s employment with the respondent or the termination thereof have been referred to the Commission outside of the statutory timeframes for referral of claims under the Acts.  

I find that a claim of direct and/or indirect discrimination against the respondent in relation to the respondent’s provision of a reference for the complainant in the context of an employment opportunity with a third party, which claim is grounded on the complainant being a prospective employee, is misconceived for the following reasons.  The prohibition on discrimination in section 8(1) applies to an employer discriminating against an employee or prospective employee.  In this case, the complainant worked under a contract of employment with the respondent which had ceased.  At the material time, the complainant was not a prospective employee of the respondent; he was a former employee of the respondent.  Section 8(5) and (6) on access to employment and conditions of employment are clear in their application to the employer of a prospective employee.  I am satisfied that the complainant was not a prospective employee within the meaning of the Acts in relation to the matter complained of against the respondent.       

In relation to the claim of victimisation by the respondent in providing a reference in or around August 2024, there was no evidence before me of the complainant having undertaken any of the protected acts set out in section 74(2) of the Acts to ground such a claim.

Additional claims raised by way of written submissions lodged with the Commission on 10 February 2025 are either statute barred or not within the remit of the Workplace Relations Commission.

Conclusion

I do not find that the complainant was directly or indirectly discriminated against on grounds of race in contravention of section 8 of the Acts.   I further find that there was no victimisation of the complainant contrary to section 74(2) of the Acts. 

For the reasons set out above, my decision is that the complainant was not discriminated against or victimised contrary to the Acts and that the claims referred to the Commission are not well-founded. 

Discrimination – Race – Victimisation – Employment reference – Prospective employment opportunity